Mullaley Gas and Pipeline Accord Inc (Mgpa) (Mullaley Gas Inc9894330) v Santos NSW (Eastern) Pty Ltd

[2021] NSWLEC 24

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mullaley Gas and Pipeline Accord Inc (MGPA) (Mullaley Gas INC9894330) v Santos NSW (Eastern) Pty Ltd; Independent Planning Commission [2021] NSWLEC 24

Hearing dates:

12 March 2021

Date of orders:

22 March 2021

Decision date:

22 March 2021

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See [23] of judgment

Catchwords:

PRACTICE AND PROCEDURE – leave to rely on limited expert evidence in judicial review proceedings granted

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW) s 4.15

Uniform Civil Procedure Rules 2005 rr 31.19, 59.7

Cases Cited:

Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102

Haughton v Minister for Planning and Macquarie Generation (2011) 185 LGERA 373; [2011] NSWLEC 217

Category:

Procedural rulings

Parties:

Mullaley Gas and Pipeline Accord Inc (MGPA) (INC9894330) (Applicant)
Santos NSW (Eastern) Pty Ltd (First Respondent)
Independent Planning Commission (Second Respondent)

Representation:

COUNSEL:
S Chordia (Applicant)
C Trahanas (First Respondent)
Submitting (Second Respondent)

SOLICITORS:
Environmental Defender’s Office (Applicant)
Corrs Chambers Westgarth (First Respondent)
NSW Department of Planning, Industry and Environment (Second Respondent)

File Number(s):

20/363113

Judgment

1. The Applicant has commenced judicial review proceedings challenging on numerous grounds the approval of the state significant development application of the First Respondent Santos NSW (Eastern) Pty Ltd for the Narrabri Gas Project (the Project) determined by the Independent Planning Commission (IPC), the Second Respondent. The IPC has filed a submitting appearance. The Applicant seeks leave under r 31.19 of the Uniform Civil Procedure Rules 2005 (UCPR) to rely on expert evidence of climate scientist Dr Sackett. The Applicant also seeks an order under r 59.7 of the UCPR that this evidence be adduced orally.

2. Expert evidence is not generally admissible in judicial review proceedings, it not being material before the decision-maker.

3. Dr Sackett provided two reports to the IPC and made oral submissions to the IPC during public hearings. Her two reports and a transcript of her evidence are attached to an affidavit of Mr Dobbie solicitor dated 11 March 2021 affirmed in support of this application.

4. Following amendment of what is sought in the course of the hearing, the expert evidence sought to be adduced is limited in scope, being the elucidation of several concepts otherwise referred to in Dr Sackett’s reports before the IPC. These are as follows:

1. the carbon budget approach;

2. apportionment of carbon budgets between different jurisdictions;

3. emissions reduction trajectories / scenarios relevant to:

1. certain levels of global warming; and

2. global warming temperature targets and emissions reduction targets adopted internationally and within Australia and New South Wales (NSW);

4. the production gap;

5. the use of the terms “scope 1, 2 and 3 greenhouse gas (GHG) emissions” in the context of the Project, NSW and Australia;

6. regional “accounting” of emissions;

7. hothouse earth;

8. forest fire index;

9. the hydrological cycle;

10. Earth System Feedbacks;

11. Tipping Points; and

12. the lag between the release of GHG emissions and related environmental impacts.

5. The presentation of arguments on Grounds 1, 3 and 4 in the amended summons dated 12 March 2021 are said to require this evidence.

Applicant’s submissions

6. The Applicant relies on Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 (Caldera) and Haughton v Minister for Planning and Macquarie Generation (2011) 185 LGERA 373; [2011] NSWLEC 217 (Haughton) at [196] on the basis that the evidence sought to be adduced is technical terms and expert opinion is necessary to explain facts relevant to the central issues. The evidence is needed as a means of exposing necessary facts to the Court and is reasonably necessary to explain the Applicant’s Grounds 1, 3 and 4 to the Court. The environmental impacts of the Project requires the interrelationship between the various concepts to be exposed.

7. Ground 1 alleges the misconstruction of s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in failing to assess the environmental impacts of the GHG emissions of the Project and balance those environmental impacts against the benefits of the Project. In relation to Ground 1, the terms set out above in [4] are relevant.

8. In relation to Ground 3, alleging the constructive failure to impose a condition regulating scope 3 GHG emissions, regional “accounting” of emissions is relevant.

9. In relation to Ground 4, alleging the IPC was legally unreasonable in not imposing a scope 3 condition, similar concepts to Ground 1 are identified as relevant, particularly the definition of “scope 3 GHG emissions”.

10. If the evidence is reduced to writing there is a risk that the full breadth of the complexity of the evidence will not be captured. The additional evidence sought is very limited and is to provide explanation for Dr Sackett’s reports before the IPC.

First Respondent’s submissions

11. The nature of the issues do not require expert evidence to be adduced. The resolution of the three grounds of appeal do not require additional expert evidence.

12. The Court is well equipped to consider the issues being raised, including technical issues. The IPC had before it the reports of Dr Sackett and these reports included explanations for the terms used, for example, there was elucidation of the carbon budget approach.

13. The list of concepts to be defined is unconfined.

14. The adducing of the additional evidence will cause additional cost and time. If additional evidence is allowed, the First Respondent would require the opportunity to respond to it.

Consideration

15. The Applicant amended the scope of its application in the course of argument so that the list of concepts in relation to which additional explanation is sought was fixed, as identified above in [4]. The list is therefore limited.

16. In Caldera, Talbot J stated at 10 that:

In exercising its function of judicial review this Court is not entitled to go beyond the material before the consent authority … The limited extent to which the Court can go beyond the material actually before the council might be summarised as follows:–

1.   Where there is a failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed.

2.   To show what a council acting reasonably ought to have done.

3.   To achieve an understanding of the environmental consequences of the action or inaction of the council.

4.   To explain factors, principles or materials relevant to the determination.

5.   In a challenge to the reasonableness of the decision where all of the relevant material before the council is in the possession of the witnesses to explain what was before the council.

6.   As to the existence and nature of information said to be relevant to the decision where council proceeds to a decision without making any attempt to obtain that information. (Prasad v The Minister for Immigration 65ALR 549 at 563, Jacfin Pty Ltd v The Taft Entertainment Company Pty Ltd & Ors No. 40033 of 1985 Stein J 3 October 1985 Unreported and Hale).

17. In Haughton, Craig J stated at [196] that:

One of the exceptions to the general proposition that in proceedings for judicial review, evidence is confined to that before the decision-maker, is where evidence is required or at least relevant to understanding the meaning of technical terms used in material before the decision-maker. …

18. The limited consideration that can be given to the substance of the Applicant’s case at such an early stage can be no more than reading the grounds in the amended summons dated 12 March 2021.

19. Ground 1 states that the IPC misconstrued its task under s 4.15 of the EPA Act because it failed to assess the environmental impacts of the GHG emissions of the Project and balance those environmental impacts against the benefits of the Project. If I understand the Applicant’s submissions correctly, it will be necessary for the Court to gain an understanding of the environmental impacts of the Project in order to assess whether the IPC misconstrued s 4.15. Ground 3 alleges that the failure to include a condition regulating scope 3 GHG emissions was legally erroneous. Ground 4 alleges that the IPC’s decision not to impose a scope 3 condition was legally unreasonable.

20. Given the nature of the issues identified in Grounds 1, 3 and 4, I accept the Applicant’s submission that this limited expert evidence enables it to better put its case and that it may be essential for the Court to hear such evidence. The evidence comes within the exceptions identified in Caldera and Haughton.

21. I will permit the additional limited evidence to be provided. This must be provided in writing in the usual course, the basis for adducing the evidence orally is not demonstrated. The main reason given for adducing the evidence orally was in case the presiding judge wished to ask questions of Dr Sackett. These are judicial review proceedings, the Court does have familiarity with the topics and the evidence was not said to require recourse to non-narrative materials. Oral evidence is not justified.

22. A timetable for the First Respondent to respond to the Applicant’s additional expert evidence will be discussed with the parties.

Orders

23. The Court orders:

1. The Applicant is given leave pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 (UCPR) to rely on expert evidence of Dr Sackett on the following matters identified:

1. the carbon budget approach;

2. apportionment of carbon budgets between different jurisdictions;

3. emissions reduction trajectories / scenarios relevant to:

1. certain levels of global warming; and

2. global warming temperature targets and emissions reduction targets adopted internationally and within Australia and New South Wales (NSW);

4. the production gap;

5. the use of the terms “scope 1, 2 and 3 greenhouse gas (GHG) emissions” in the context of the Project, NSW and Australia;

6. regional “accounting” of emissions;

7. hothouse earth;

8. forest fire index;

9. the hydrological cycle;

10. Earth System Feedbacks;

11. Tipping Points; and

12. the lag between the release of GHG emissions and related environmental impacts.

2. The Applicant is refused leave pursuant to r 59.7 of the UCPR to adduce Dr Sackett’s evidence orally.

**********

Decision last updated: 24 March 2021